Citation Nr: 0424836
Decision Date: 09/09/04 Archive Date: 09/16/04
DOCKET NO. 03-00 437 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for claimed post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
A. Nigam, Law Clerk
INTRODUCTION
The veteran served on active duty from June 1970 to December
1971.
In the course of his appeal, the veteran offered testimony
before the undersigned Veterans Law Judge at a
videoconference hearing in May 2004.
The appeal is being remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran and his representative if further action is
required on his part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code, concerning the notice and assistance to be afforded to
the claimants in substantiating their claims. VCAA §3(a),
114 Stat. 2096, 2096-97 (2000) (now codified as amended at
38 U.S.C.A. §§ 5103, 5103A (West 2002)).
VA subsequently published regulations, which were created for
the purpose of implementing many of the provisions of the
VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a)
(2003)).
Under the VCAA, VA is required to make reasonable efforts to
obtain relevant records (including private records) that the
claimant adequately identifies and authorizes VA to obtain.
38 U.S.C.A. § 5103A(b). The assistance provided by the VA
will also include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d).
The veteran contends that he has a current disability of PTSD
as the result of stressors he experienced during service.
Recent VA medical examination and treatment records suggest
that the veteran may have PTSD.
Specifically, the veteran claims to have served as a military
policeman (MP) during the Vietnam conflict in Phu Tan, Pleiku
and An Khe for one year. He alleges that he was made to lead
convoys from camp to camp (through the Mang Yang and the An
Khe Passes) and often returned alone through the dangerous
passes.
Reportedly, the veteran had witnessed a Vietnamese baby get
run over by a truck, saw soldiers overdose on drugs and die
with needles protruding from their arms, and another MP shoot
and kill an American soldier in an alley after the soldier
had opened fire on them. Lastly, he reports that, throughout
his tour of duty in Vietnam, he was exposed to small arms
fire.
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a); and a link, established by medical evidence,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred.
Consistent with the new duty-to-assist regulations, after
reviewing the veteran's case, the Board finds that additional
evidentiary development is needed prior to final appellate
consideration of his claim.
The Board notes that VA treatment reports from February 2002
to July 2003 indicate that the veteran received treatment for
PTSD. The Board further notes that in January 2003, the
veteran received a VA medical examination in which the
examiner diagnosed the veteran as suffering from some PTSD
symptoms.
However, it should be noted that the veteran's claims folder
was not available for review by the examiner, and that she
relied solely upon his statements regarding what happened to
him in service as the basis of her opinion.
Furthermore, the examiner expressed her belief that the
veteran appeared to be exaggerating his symptoms, and that
she needed additional information contained in his claims
folder to assess his condition.
It should be noted that no confirmation has been made of the
veteran's alleged stressors. The Board acknowledges the
December 2002 letter submitted by the veteran's psychologist
as evidence to verify his alleged stressors.
Accompanying this letter were military articles regarding the
veteran's company, Silver Star Citation award given to a
different veteran, and map of South Vietnam. However, the
Board finds these documents inconclusive in proving the
veteran's specific stressors.
The Board notes that the RO's attempts to verify the
occurrence of the claimed stressors are insufficient. It
does not appear, as evidence by December 2001, January 2002,
and March 2002 correspondence from the RO to the veteran,
that the RO provided sufficient enough direction to the
veteran regarding the level of specificity required to prove
the stressor incidents.
While this case is in remand status, the RO should also
ensure that the veteran's most recent VA and private
treatment records are obtained and associated with the claims
folder.
Accordingly, this case is remanded for the following actions:
1. The RO should take appropriate steps
to contact the veteran and ask him to
provide a list of names and addresses of
any additional doctors and medical care
facilities (hospitals, HMOs, etc.), which
have treated him for his PTSD. He should
be provided with release forms and asked
that a copy be signed and returned for
each health care provider identified.
When the veteran responds, the RO should
obtain records from each health care
provider the veteran identifies (except
where VA has already made reasonable
efforts to obtain the records from a
particular provider). If these records
cannot be obtained and there is no
affirmative evidence that they do not
exist, the RO should inform the veteran
of the records that could not be
obtained, including what efforts were
made to obtain them.
2. The RO should send a development
letter asking the veteran to give a
comprehensive statement regarding his
alleged stressors. He should be as
specific as possible as to the following
criteria: dates and circumstances of the
claimed stressors, type and location of
the incidents, numbers and full names of
casualties, unit designations to company
level to which he was assigned and his
specific duties at the time of the
incidents, other units involved, the name
of any individuals involved and any
witnesses to the claimed incidents, and a
description of his personal involvement
in each incident. The veteran is advised
that this information is necessary to
obtain supportive evidence of the
stressful events, and that he must be as
specific as possible to facilitate a
search for verifying information.
3. If, and only if, the veteran provides
information that is sufficiently
specific, the RO should send a report of
all statements pertaining to stressful
events provided by the veteran in support
of his claim and all associated documents
to the USASCRUR, located at 7798 Cissna
Road, Suite 101, Springfield, Virginia
22150-3197. USASCRUR should be requested
to provide any information that might
corroborate each of the veteran's alleged
stressors. A response, negative or
positive, should be associated with the
claims file. The RO should, as
indicated, undertake follow-up through
appropriate channels to obtain
verification of the veteran's claimed
stressor(s).
4. Following the completion of the
requested action and any other indicated
development, the RO should adjudicate the
issues on appeal. If the benefit sought
on appeal remains denied, the veteran and
his representative should be furnished
with a supplemental statement of the case
and given the opportunity to respond
thereto.
Thereafter, if indicated, the case should be returned to the
Board for the purpose of appellate disposition.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).